Estate of Newell

This is a proceeding to contest a will before probate. The proceeding was heard before the trial court sitting without a jury. The trial court made findings in favor of the proponent and thereafter ordered judgment in accordance therewith. From that judgment the contestant has appealed under section 953a of the Code of Civil Procedure.

The first point made by the appellant is “that no will was before the court as evidence; no will was introduced in evidence; no will was offered in evidence; and no will was even marked for identification. That there is an entire absence of even a prima facie case warranting the admission of the will to probate.” The point rests upon the fact that the proponent did not formally state that he offered the will in evidence and he did not formally read the will, nevertheless we think that the record is not vulnerable to the attack made by the appellant. The appellant does not call to our attention any objection, motion, or exception showing that the point was in any way called to the attention of the trial court. On the calling of the case the proponent commenced to introduce a prima facie case proving his petition for the probate of the will. He…